By Justin Wallace

On April 23, 2021, “Jon” walked into my office for a consultation on his potential case. Jon had been struck by a pickup truck while crossing a five-lane road, outside of a crosswalk, at 10:00 pm, while wearing a dark work uniform, on the way to catch his bus to the night shift. Jon’s statute of limitations ran in June of 2021 and Jon had already had his case rejected by multiple attorneys who declared Jon contributorily negligent.

Fast forward to September 27, 2022. A Baltimore City jury found the Defendant to be negligent, found Jon to be not contributorily negligent, and awarded $306,000 in damages, an excess verdict of $206,000.

I asked myself: why had so many attorneys rejected Jon’s case on the basis of contributory negligence when a jury had no problem finding Jon to not be contributorily negligent?

Generally speaking, rejected cases are rejected for one of the following reasons:

1. The client cannot pay, or the possible recovery doesn’t justify taking the case.
2. Prior attorneys found the client abrasive.
3. The case is considered difficult.

This article addresses why these reasons for rejection by prior attorneys should not preclude a new attorney from taking the case. Finally, we will discuss why taking on rejected cases is often the right thing to do.

 

1. The Client Cannot Pay, or the Possible Recovery is Too Low

Every attorney has a responsibility to their family and their employees to keep their firm profitable and healthy; however, attorneys also have a responsibility to our justice system at large.

 An attorney has a professional responsibility to render pro bono publico legal service. MD R ATTORNEYS Rule 19-306.1. This includes to persons of limited means without expectation of a fee or at a substantially reduced fee. Id. Though this rule is “aspirational” and not mandatory, plaintiffs throughout the country are at a severe disadvantage without the assistance of competent legal representation. Pro Se Plaintiffs receive a judgment in their favor about 4% of the time in Federal District Courts.[1] It is not difficult to imagine how these plaintiffs, without the assistance of counsel, are creating bias against our represented clients when they are unable to adequately respond to the tort reform arguments of defense counsel due to a lack of representation.

The American Bar Association estimates that 80% of Americans are unable to afford access to civil attorneys.[2] This means that their consumer protection complaints, landlord-tenant disputes, and insurance disputes are often handled without the experience of counsel. Contingency fee arrangements provide no relief if the attorney assesses that the likely recovery is low. But attorneys should consider that there are intangible benefits to representing those who may need an attorney, even when the representation is unlikely to be profitable. Litigation experience is an invaluable asset and cases with low likelihood of profitability are a great way to provide trial experience to younger associates. Further, a happy client is likely to refer others to your firm. The American Bar Association cites direct referrals as one of the best ways for a prospective client to find an attorney.[3] The client with the $500 contingency fee case may refer you a much larger case after receiving the benefit of your skill and assistance. Even without direct referrals, adding additional 5-star Google reviews to your business profile only increases the likelihood of retaining more lucrative cases in the future. A 2021 FindLaw survey found that 86% of legal consumers consider an attorney’s reputation one of their top hiring factors and 67% of legal consumers consider past client reviews one of the most important metrics for evaluating a lawyer’s skill.[4] Taking on cases pro bono, “low bono”, or where the possible recovery is low may not only be the right thing to do for the potential client, but for you as well.

 

2. Prior Attorneys Considered the Client Abrasive

Let me be clear: neither you nor any member of your team should ever feel unsafe or disrespected by a client. That said, both clients and attorneys are people who have a wide range of personalities, relationship styles, and methods of communicating. That two people are not always able to form an amicable relationship, despite wanting the same things, does not mean a client will never find an attorney they work well with. Much like dating, prior relationship failure is not always indicative that future relationships are doomed to fail for the same reason.

As attorneys, we perform an essential service, much like the medical field. Imagine being unable to secure the services of a primary care physician due to a perception of being a difficult patient. Our style of communication with clients varies. Some clients may not get along with their attorney or don’t respond well to that attorney’s style of communication; however, the client may respond to an attorney with a different personality and communication style. When meeting with a potential client who has been rejected by another lawyer, it is important to ascertain their reasons for not getting along with the prior or rejecting attorney. Did the attorney overpromise and underdeliver? Did the attorney prefer written communication when the client preferred face to face meetings? If the prior relationship broke down due to a different style of client management, the potential client may respond well to your style of client management and the problem may be moot.

 

3. The Case is Considered Difficult

The reason most cases are rejected by attorneys is that the case is considered too difficult. Maryland’s adherence to the harsh outcome of contributory negligence only exacerbates skeptical views on difficult cases. But it is important to consider that difficult cases have their own advantages.

Often, our opponents approach our cases with a “wash, rinse, repeat” mentality. The depositions of our clients take the same character from case to case. The contents of defense expert reports are known to us before the reports are ever produced. Cross-examinations have no real variance from trial to trial. In short: defense attorneys often lack imagination. Our great advantage is that we get to build our case in the manner we choose. The defense industry’s lack of experience in combating cases that appear difficult for plaintiffs gives us an advantage. In the Art of War, Sun Tzu said, “[i]n battle, confrontation is done directly, victory is gained by surprise.” Difficult cases always give us the element of surprise, as our opponents are at a loss as to how we will navigate an issue they have not seen before or do not believe is winnable.

Let’s take Jon’s case as an example. The Defense believed that by simply instructing the jury that Jon was not in a crosswalk, they were sure to win on the issue of contributory negligence. The Defense never accounted for the special jury instruction that pedestrians are not required to cross the road at marked crosswalks. See, Azar v. Adams, 117 Md. App. 426, 440 (1997). The Defense was also unable to explain to the jury why Jon’s presence outside of a crosswalk was a breach of Jon’s duty to avoid vehicles visible in the roadway before crossing. Nor were they able to explain why Jon’s mere presence on the roadway caused Jon to be struck by the Defendant’s vehicle. This was buttressed by Defendant’s admission that, despite driving this road every day, he could not say where the crosswalks were. The argument became simple: my client had the right to be where he was, the Defendant wasn’t paying attention, and there was no evidence as to what my client should have done to avoid being run over by a distracted driver. I will never forget the forcefulness with which the foreperson answered “no” to the question of contributory negligence.

The Defense was so focused on the difficult fact of Jon’s case, that he was crossing outside of a crosswalk at night, that they never prepared their case to explain to the jury the conclusion they had unknowingly presented for the jury: that the Defendant had an unrestricted right to run Jon over, despite him being visible, because he was not in a crosswalk. This proposed rule from the Defense was an easy one for the jury to reject.

Difficult cases, such as Jon’s, are examples of defense attorneys missing the forest for the trees. Juries are likely to accept simple rules, such as don’t run over pedestrians when they are visible, over contributory negligence defenses that are contrary to common sense principles, such as drivers can run over anything or anyone they want if they are not in a crosswalk. Relish the advantage of a case where the defense’s singular focus causes them to ignore all of the facts in your client’s favor.

Jon deserved his day in court. Many attorneys had rejected his case for fear of the contributory negligence issue. But those reading this article have committed to fostering a justice system that gives every person their chance to be heard. Don’t view taking on rejected cases as a shot in the dark or a swing of the bat; view rejected cases as helping a person in need be heard. As this article posits, the pursuit of justice, win or lose, is a worthwhile endeavor that almost always carries a benefit to your practice. Do the right thing: take a rejected case, even if difficult. The experience is sure to be beneficial, and the results may surprise you and your opponent.

 

Biography

Justin Wallace, of the Law Office of Justin A. Wallace, LLC, is a solo practitioner in Timonium, Maryland. Justin’s practice focuses on civil litigation in workers’ compensation and personal injury matters. In practice since 2015, Justin has tried cases throughout Maryland and focuses on Circuit Court jury trials in motor vehicle collisions, dog bites, and premises liability.